Pre-Nuptial and Post-Nuptial Agreements

If you think pre-nuptial agreements are necessary only for those who have substantial property at the time of their marriage, you are mistaken. Pre-nuptial and post-nuptial agreements are critical in a variety of situations:

In a divorce, the court may award a spouse not only half of the joint property, but also parts from the "potential income" of the other spouse. Courts can view personal or professional reputation as assets that should be divided between spouses during a divorce. The same holds for property or other valuable assets which have been received from parents.

In some cases, parents may be in possession of property or other assets, which they allow their son or daughter (and their spouses) to use. This situation could become complicated if upon separation, the spouse was to claim entitlement to half of the asset.

Such situations may arise not only among married couples, but also couples who cohabitate, or even those who do not live together buy may be regarded by the court as having a common-law marriage (a term which is extremely flexible in Israeli family law).

Moreover, the danger in pre-nuptial and post-nuptial agreements is the false sense of security they provide. Often, a couple who has signed such an agreement discovers, during their divorce, that for some reason the court has decided to invalidate the agreement, or to exclude some of the assets from the terms of the agreement.

The Court may decide, for example, that changes have occurred since the time of signing the agreement, whether changes in their assets or in the relationship, and that due to these changes the agreement is no longer binding.

Given the above, if you have an asset and you are concerned of its’ future ownership, or if you expect to gain such an asset in the future, it is important that such agreements be prepared by someone with expertise in the area and also that such agreements are periodically evaluated to ensure that they will be upheld in court.

Dr. Mazeh has closely examined cases in which courts have divided property despite agreements which have stated otherwise, and developed the ability to draft agreements carefully around these pitfalls, in particular with respect to complex property including intellectual property, commercial or personal goodwill, options and stock, etc.